Standing Committee D

[Mr. Alan Hurst in the Chair]

Railways and Transport Safety Bill

Clause 6 - Investigations

Amendment moved [this day]: No. 5, in 
clause 6, page 3, line 24, at end insert— 
 '(9) The Rail Accident Investigation branch may not use contractors and subcontractors to assist in their investigations.'.—[Mr. Don Foster.]

Don Foster: I am delighted to chair—[Interruption.]—to serve under your chairmanship, Mr. Hurst. I can see it is going to be one of those days. Before we broke this morning, I was occupying the crease for a couple of minutes to avoid getting into detail on the amendment. On my way out of the Room, I was pleased when the hon. Member for Uxbridge (Mr. Randall) suggested that I was in good training for a likely appearance one day on ''Just a Minute''. But as those listening will be aware, I would have been rapidly called to order there for using the phrase, ''Order, order'' within the first two seconds.
 I gave a clear hint to Committee members that there would be great merit in their using the lunch break to read the Under-Secretary of State's written answer to one of my parliamentary questions from last summer. Although we heard this morning that the Under-Secretary was suffering from a cold and a sore throat, I am delighted to have goaded him so much by referring to his silence that he is going to respond on the Government's behalf to the amendment this afternoon. We will give him a great deal of silence while he speaks and hope that he succeeds. 
 Before I say anything specific about the amendment, I want to place it firmly on the record that any reference I make to a particular company is in no way intended to be a criticism of that company or its work. Lord Cullen, in recommending the establishment of the rail accident investigation branch, said that he believed it should be an independent body. He meant by that that it should be primarily independent of the body or bodies responsible for setting railway safety standards, but it was also implied, although stated less explicitly, independent from railway companies. 
 Many railway companies, especially the train operating companies and Network Rail, make extensive use of contractors and sub-contractors. It would therefore be reasonable to assume that in calling for the rail accident investigation branch to be independent, Lord Cullen intended it to be independent of the contractors and sub-contractors that work on the railway. That view is clearly shared by the Under-Secretary. In our exchange through the parliamentary question of 10 June 2002—for the 
 convenience of members who may not have had time during lunch to read it—I asked him: 
''when the proposed railway safety body will be established; what its remit is; what the role of (a) contractors and (b) sub-contractors will be within this body; and if he will make a statement.
 He replied: 
''We expect to consult this summer on proposals for the establishment of an independent rail accident investigation branch (RAIB) before publishing the necessary primary legislation. The remit of the RAIB will be subject to consultation but will reflect the recommendations made by Lord Cullen in his part 2 report on the Ladbroke Grove Rail Inquiry. The role of contractors or sub-contractors within RAIB would be as witnesses, when appropriate, during investigations.''—[Official Report, 10 June 2002; Vol. 386, c. 781W.]
 Clearly, the Under-Secretary does not envisage the use of such contractors directly in the RAIB's work. 
 I would be the first to acknowledge the difficulty of defining exactly who is the contractor and sub-contractor in particular circumstances. On Second Reading and this morning, I referred to the need for the RAIB to use forensic laboratory facilities, perhaps to examine a piece of rail, as in the Potter's Bar inquiry, or a whole carriage. The Minister responded that that would be possible and that RAIB would be expected to pay for the use of such facilities. The laboratory facility could therefore be defined as a contractor or sub-contractor. 
 We could go further. RAIB might need to bring in heavy lifting equipment to move a carriage or train off the track; or it might need transportation facilities to take a train or track to the forensic laboratory. Providers of such services could again be thought of as contractors or sub-contractors, so I accept the problem of definition. Under clause 8(1): 
''The Secretary of State may make regulations about the conduct of investigations by the Rail Accident Investigation Branch'',
 and under paragraph (e) he may 
''permit or require the Chief Inspector to request assistance from another person'',
 which could again cause confusion as to whether that person is a contractor or sub-contractor. We need to distinguish more clearly between bodies that can be viewed as contractors or sub-contractors and bodies assisting with the inquiry that have no direct bearing on any aspect of the problems leading to the investigation. 
 In referring to a couple of firms as examples, I make no criticism of their work. WS Atkins plc is part of the Metronet consortium, one of the London Underground infrastructure companies. It would be strange if it provided assistance to the RAIB in connection with an incident on the tube. It would be difficult to use the firm in any circumstances involving the railways because it has provided so much advice, support and contract work in the railway sector. 
 It is interesting to see the range of activities with which WS Atkins has been associated—work for the Health and Safety Executive, for example. It has carried out a range of research contracts on supporting investigations into accidents and on safety cases since 1997. It examined Railtrack's responses to improvement notices, took part in investigations into 
 danger signals passed and looked into crash worthiness developments in mark 1 rolling stocks. 
 That is only one company. On 23 January last year, the Health and Safety Executive referred to a report by Her Majesty's rail inspectorate that had been compiled jointly with WS Atkins in response to the improvement notice served after the Ladbroke Grove train crash of October 1999. I have been surprised about the extent to which this and other companies have been involved in railway work. I note that the Health and Safety Executive recently signed agreements with five major businesses for the supply of technical support for its work. In a press release, the HSE stated that it had 
''awarded technical support 'framework agreements' to five international organisations . . . The agreements cover the provision of technical support and analyst services across the industry sectors in which HSE are involved including: rail''.
 The organisations were AEA Technology, Amey Vectra, BOMEL of Maidenhead, NEL of East Kilbride and WS Atkins of Warrington. 
 Some bodies will quite properly provide support for the work of the rail accident investigation branch. On the other hand, I know from the Under-Secretary's reply, with which I agree, that it would be inappropriate for certain other bodies to be involved in the branch's work. The amendment gives the Under-Secretary the opportunity to tell the Committee how he proposes to live up the answer that he gave to a parliamentary question on how the roles of the two sorts of support organisation—the contractors and sub-contractors, and others—can be clearly defined and separated.

Kelvin Hopkins: May I say what a pleasure it is to serve under your chairmanship, Mr. Hurst?
 I intend to support my hon. Friend the Under-Secretary, although the Liberal Democrat spokesman was right to table the amendment. However, the world has moved on since the Under-Secretary gave his answer. Contractors are no longer as highly regarded as they were. That is certainly true of the rail industry in the light of recent accidents and since the establishment of Network Rail, which recently decided to take some of its maintenance contracts in-house and extend them. The costs of contracting are now seen to be much higher than direct employment. I hope that that will influence any decision about using contractors in railway safety. As the hon. Member for Bath (Mr. Foster) pointed out, there is scope for using outside assistance in providing services during an investigation, such as hiring a minibus and providing sandwiches for the investigators. Even photographers might be on contracts and might be seen as contractors. 
 The wording of the amendment suggests too wide a scope. It might be stronger and more precise if it read, ''to undertake investigations'', rather than to ''assist'' in them. I will vote against it, but it is appropriate to raise the issue. I hope that the Under-Secretary and the Minister will consider direct employment for those who undertake the investigations.

Anne McIntosh: May I welcome you to the Committee and say what a pleasure it is to serve under your chairmanship, Mr. Hurst? I am sure that we will all get to know each other much better during the course of the Committee.
 I shall be brief, as I would like a debate on clause 6 stand part. I thank the hon. Member for Bath for his amendment. I draw the attention of the Committee to comments made by the Secretary of State on Second Reading. 
''No one branch could include the expertise necessary to consider every aspect of a train incident, for example. I am certain that, from time to time, the new branch will need to go to outside bodies to get the expertise that it needs, and that is what people would expect.''—[Official Report, 28 January 2003; Vol. 398, c. 767.]
 The Secretary of State's comments and amendment No. 5 raise a question to which the Under-Secretary might respond. If the new branch is to be encouraged to get outside assistance, will the Under-Secretary clarify which bodies it might be expected to turn to and under what circumstances? 
 I have a problem with amendment No. 5. I can see where the hon. Member for Bath is coming from, as it harks back to previous times and perhaps to a body in which I declared an interest this morning. For your information, Mr. Hurst, I still have half my shares in Railtrack, having failed to sell them at their peak. I am still due a second instalment on them, although it is not a substantial amount of money, as we discussed this morning. Will the Under-Secretary confirm what the Minister for Transport said this morning? In circumstances in which the Secretary of State believes that there is a case for outside assistance, will there be a strong and direct chain of command and control back to the chief inspector? The Bill is silent about that. 
 Regrettably, the alliance is not dead in the water just yet, but on this issue we will wait for the Minister's comments.

David Jamieson: I welcome you, Mr. Hurst. It is a pleasure to sit again under your careful and watchful eye. I have been uncharacteristically quiet so far in this Committee, and as you can hear from my voice, that is probably for the best.
 I thought that it would be appropriate for me to reply to the amendment tabled by the hon. Member for Bath. As he said, he took the crease just before we finished our morning sitting, and he kindly referred me to a question that I answered last June. He need not have done that. Although I have answered 3,000 or 4,000 questions since then, I am fully familiar with all my answers. Nevertheless, I welcome the opportunity to explain that one. I hope to show the hon. Gentleman that his amendment is unworkable, impractical and out of step with the current practice of the air and marine accident investigation branches and Health and Safety Executive investigations. 
 The query about my answer may be explained by different meanings of the word ''contracting'' in two 
 contexts. The hon. Gentleman mentioned Lord Cullen's inquiry into Ladbroke Grove in his question, and the inquiry referred directly to the use of contractors. As my hon. Friend the Member for Luton, North (Mr. Hopkins) implied, it was not just a matter of contractors, but the management of those contractors. The hon. Member for Vale of York (Miss McIntosh) also mentioned that. 
 In my answer of 10 June, I was referring to contractors involved in general maintenance work on the railways. The only context in which those contractors would have been used in investigation would have been as witnesses to whether the work was carried out properly. I do not think that there was any intention to rule out the use of those contractors in an inquiry or the ability of the rail accident investigation branch to call in assistance other than from people working directly for the branch. The hon. Member for Bath will appreciate that it would be almost impossible for the branch to carry out its work without calling in other forms of advice and assistance. 
 Both the highly respected air and marine accident investigations branches use outside contractors to assist them during their investigations. The marine accident investigation branch, with which I am very familiar and from which I see a lot of reports, uses salvage experts to lift wreckage from the sea bed, and uses metallurgists to inspect or test different parts of a vessel. The aviation accident investigation branch may also use outside experts: for example, it may call on the expertise of those in the aircraft manufacture laboratories. Both those bodies use such experts extensively because of the level and type of work that they do. 
 It would be impossible for the rail accident investigation branch to avoid using contractors. For example, it might need to move and test train wreckage, and if it could not use contractors, it might be unable to find out what went wrong. In those circumstances, its ability to carry out effective investigations would be very limited. 
 In relation to the question raised by the hon. Member for Bath this morning about the establishment of the rail accident investigation branch, it would be impractical for it to retain the level of expertise needed on a permanent basis in anticipation of there being an accident. 
 The hon. Member for Vale of York asked me to give some examples. I gave examples from the aviation and maritime areas, but I will give examples specific to rail. The rail accident investigation branch would sometimes need laboratory facilities, or heavy lifting equipment to move train wreckage, and a range of other facilities. I am sure that the hon. Lady has enough experience in the area to imagine what other facilities might be required. 
 Although I understand the comments that have been made by the hon. Member for Bath and by my hon. Friend the Member for Luton, North, and notwithstanding what the hon. Member for Vale of York said, there must be proper supervision of any contractor. There must be a proper chain of command. 
 The Minister for Transport set that out clearly this morning in his reply to an earlier debate. 
 I hope that I have addressed the concerns raised by my hon. Friend and by Opposition Members, and that the amendment will be withdrawn.

Don Foster: I congratulate the Minister on getting through that, and on his reasonably helpful reply.
 I am grateful for the comments made by the hon. Member for Luton, North, who reminded us of the ongoing debate about the use of contractors and sub-contractors, particularly in rail maintenance work. I chose not to refer to that debate, as I did not wish to appear critical of individual companies to which I might refer in my subsequent remarks. The hon. Gentleman was right to do so, however, and many of us are delighted that Network Rail has decided to bring back in house the work in the Reading area. That will give us a comparator benchmark against which we can examine costs in other parts of the network, although many of us believe that we do not need to wait for the comparator information and that Network Rail should get on with that work quickly. 
 I was also grateful for the comments made by the hon. Member for Vale of York. She reminded us, quite rightly—I hoped that I had referred to that in my own remarks—that it would be almost impossible to envisage the rail accident investigation branch doing all the necessary work itself. I understand that it would be necessary to use such external contractors, and gave specific examples about the use of forensic laboratories or heavy gear lifting. 
 My concern throughout has been with the conflict of interest that might arise if certain contractors were used. The Minister has not completely reassured me. I referred earlier to the recent contract that the Health and Safety Executive had entered into with five major companies. The HSE's press release states: 
''Famous five scoop top HSE awards.''
 The HSE contract means that any of the companies to which I referred could be involved in the provision of a range of services. The deputy director general said of the awarding of that contract: 
''These companies will be providing invaluable technical support and contributing to the robust service the HSE provides in helping make working environments safer.''
 That includes rail environments. 
 Not until the RAIB is a long way into its investigation will we necessarily have any indication of the cause. Safety standards may have been incorrectly applied. The standards themselves might be incorrect or the advice that has come from one of those many different contractors may have contributed to the accident or the incident. It will be difficult for the RAIB to decide which contractors it can use. Contractors will have been involved in setting or advising on safety standards or a whole range of issues, and not just, as the hon. Member for Luton, North said, on maintenance of the track. Notwithstanding the Minister's response, there is still a legitimate concern about conflicts of interest between the bodies that might be brought in to assist the RAIB in its work and the nature of the investigation being 
 carried out. The Minister has an inquisitive frown on his face.

David Jamieson: Thoughtful.

Don Foster: That might indicate that he is minded to go back and look at this issue in a little more detail. On the basis of the Minister's thoughtful frown, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Anne McIntosh: I refer the Committee to the Secretary of State's comments on Second Reading. He said:
''the Bill . . . gives a fair amount of latitude to the chief inspector as to what he investigates. In some cases it would be mandatory; in others there would be a discretion . . . there is sufficient latitude under clause 6 to allow the chief inspector to take a decision as to whether or not he ought to investigate. The circumstances that might lead to his investigation would depend on the information that he had before him, and existing health and safety legislation would be of help. Again, if hon. Members feel that the situation could be improved, of course the Government are open to their suggestions.''—[Official Report, 28 January 2003; Vol. 398, c. 771–2.]
 This is the challenge to the Committee this afternoon. We can come forward with a number of suggestions. I should like to take the Committee through both the definitions in the Railways Act 1993 and the definitions that form the background to the clause. The clause states: 
''The Rail Accident Investigation Branch—
(a) shall investigate any serious railway accident''.
 There is no scope for discretion. However, subsections (b) and (c) provide discretion because the RAIB 
''(b) may investigate a non-serious railway accident or a railway incident, and
(c) shall investigate a non-serious railway accident or a railway incident if required to do so by or in accordance with regulations made by the Secretary of State.''
 I remind the Minister that the Opposition would prefer all the powers and procedures to be set out in the Bill so that the Committee and those who implement the Bill may be clear what we are talking about. I understand that definitions were deliberately not included in the Bill but will be in regulations. 
 The consultation paper that preceded the Bill proposed that the jurisdiction of the rail accident investigation branch should take as its starting point the definition of a ''railway'' in section 81(2) of the Railways Act 1993. That definition describes ''a railway'' as a network, rolling stock or track, and 
''a tramway, or . . . a transport system which uses another mode of guided transport but which is not a trolley vehicle system''.
 I am sure that the Under-Secretary would want to make it clear that this country does not have trolley vehicle systems. I may be wrong—perhaps Bristol or Manchester is an exception—but I presume that such systems are excluded for the simple reason that we do not have them at present, in the same way that tramways were excluded in relation to Scotland. Perhaps further clarification is required. 
 Clause 6(2) provides for the chief inspector of the rail accident investigation branch to exercise discretion when considering whether to investigate a serious accident on a tramway. I understand that that is because the investigation of an accident affecting a road-running part of a tramway would fall to the police. Again, that raises the question of the relationship between the police and the rail accident investigation branch. Perhaps it would be useful for the Under-Secretary to clarify that.

John Randall: I am glad that my hon. Friend has referred to tramways, because I was a little concerned that one minute they were included and the next they were not. She thinks that, if they are along a road, the police would be involved. However, tramways are sometimes separate from roads. Does my hon. Friend believe that there would be a difference in that respect?

Anne McIntosh: I hope that the Under-Secretary will put our minds at rest on that. To be honest, I do not have a clue, so I should be grateful if he would take this opportunity to clarify that. We need to be sure whether we are talking about a tram running on a tramway or running on a road that operates as a tramway, and whether trolley vehicle systems—they were called trolley buses when I was a little girl—are specifically excluded because we do not have them. I am grateful to my hon. Friend for seeking that further clarification from the Government.
 It is expected that an accident affecting a rail-running part of a tramway would be investigated by the rail accident investigation branch. This is no joking matter. I am a non-practising lawyer, but I might in future have to interpret the provision on behalf of a client. It would therefore be helpful to know the circumstances in which the rail accident investigation branch and the police will conduct investigations. 
 Will the Under-Secretary elaborate on the extent to which a further definition set out in section 83 of the 1993 Act is still relevant? Obviously, that was a very good Act, passed under a very good Government. We applaud their achievements and pause to pay homage to them. One definition in that section relates to premises, which are described as including 
''any land, building or structure''.
 I presume that the Under-Secretary will confirm today that that definition stands unamended and that we are not diluting that interpretation in any shape or form. 
 At the consultation stage, comments were invited on the proposal that a statutory objective of the rail accident investigation branch should be that its fundamental purpose is to undertake investigations and inquiries that look for the root causes of accidents, without apportioning blame or liability. On the face of it, the Bill does not deal with manslaughter and whether criminal responsibility will arise, and nor does it state whether the branch will investigate such matters under clause 6. Will the Under-Secretary put our minds at rest and say whether the Bill also covers corporate liability? 
 I am grateful to the Library for giving me a full copy of the relevant regulations. Regulation 4 of the Civil Aviation (Investigation of Air Accident and Incidents) Regulations 1996 states that 
''the sole objective of the investigation shall be the prevention of accidents and incidents. It shall not be the purpose of such an investigation to apportion blame or liability.''
 We discussed this morning the extent to which the rail safety and standards board will have a role to play in the prevention of accidents, and the Bill should refer to that work. The Bill is wrongly silent on the subject and it should have been more specific. 
 Regulation 4 of the Merchant Shipping (Accident Reports and Investigation) Regulations 1999 implemented provisions in the Merchant Shipping Act 1995, which is obviously a laudable provision as it was enacted under a Conservative Administration. It states that 
''the fundamental purpose of investigating an accident under these regulations is to determine its circumstances and the causes with the aim of improving the safety of life at sea and the avoidance of accidents in the future. It is not the purpose to apportion liability, nor, except so far as is necessary to achieve the fundamental purpose, to apportion blame.''
 We are asked to take it as read that clause 6(3) and (5) taken together provide that although the rail accident investigation branch is not to consider blame or liability, it can still make a report or a determination of the cause from which liability or blame may be inferred. I have difficulty with the breathtaking sweep of clause 6, especially subsections (3) and (5). Subsection (3) states: 
''In investigating an accident or incident the Branch shall try to determine what caused it.''
 Subsection (5) states: 
''In performing a function in relation to an accident or incident the Branch—
(a) shall not consider or determine blame or liability''.
 Why are those provisions in the Bill rather than in regulations, as was the case with the maritime and aviation legislation? What the Under-Secretary proposes is most welcome, and it is something I have argued for. It would be nice to know that it is not a typographical error but an opportunity for the Government to sing their own praises. 
 Clause 6(6) states: 
''The Branch may conduct an investigation and report whether or not civil or criminal proceedings are in progress or may be instituted''.
 Will the Under-Secretary say whether the rail accident investigation branch will decide whether criminal or civil proceedings will be brought if it is acting independently or whether it will work closely with the police? 
 In subsection (7) the chief inspector of rail accidents is given the power to apply to the High Court or the Crown court 
''for a declaration that the making of a report in connection with a specified accident or incident will not amount to a contempt of court in relation to civil or criminal proceedings which have been or may be instituted in connection with the accident or incident''.
 That raises a practical problem that must be overcome. As the Secretary of State said on Second Reading, the 
 Bill's objective is a swift investigation leading to a speedy outcome. 
 If the prospect raised under subsection (7) is that either the court proceedings or the investigation will be delayed so that court proceedings can conclude, which of the proceedings will have priority? Will it be the proceedings of the rail accident investigation branch under clause 6 or would the normal criminal or civil proceedings be allowed to run their course? 
 Subsection (8) states: 
''The Chief Inspector of Rail Accidents may reopen an investigation if he believes that significant new evidence may be available''.
 If my distant memory serves me, the statutory limitation period is seven years if an accident or incident, non-serious or serious, takes place. One would normally expect seven years to be sufficient time for all the evidence to emerge. 
 We support in principle the setting up of the rail accident investigation branch. However, I find breathtaking the extent to which we are being asked to give an open-ended commitment to allow the chief inspector of rail accidents to act completely on his own without applying to a court of law or seeking any authorisation other than his own hand. As a non-practising lawyer I have some difficulty with that. It would assist us if the Under-Secretary would say whether the seven-year statutory limitation will apply. 
 Clause 6 is not as innocent as one might imagine on the first reading. The Government have departed from the practice set out in connection with the Civil Aviation Act 1982 which relies heavily on the helpful latest regulations under the Civil Aviation Act (Investigation of Accidents) Regulations 1996, as well as from the procedures set up by the Merchant Shipping Act 1995, as elaborated in the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999. It would help us to know the reasons for those departures, which may be welcome. The Minister may agree that it is best that the regulations are written into the Bill rather than implemented under it. We need to know whether the proceedings of the RAIB have priority over civil and criminal court proceedings. We also need to know whether there is a statutory element of limitation, or whether, as it would appear, the chief inspector of rail accidents is given a completely open-ended power to re-open an investigation at any time if he believes that significant new evidence may be available. It may also be helpful to know what that significant new evidence might entail.

Tom Brake: I had intended to reserve the most devastating of my arguments on this subject until the debate on clause 7, when we were to debate our amendment No. 10. However, due to a minor typographical error, the amendment appears against clause 7, when it should appear against clause 6, which hampers my attempt to support it.
 Amendment No. 10 is pertinent to clause 6(5), which relates to blame or liability. As hon. Members 
 are aware, at the Ladbroke Grove inquiry, Dr. Walter of Railtrack's Safety and Standards Directorate said: 
''a fear of prosecution''
 was 
''hampering the free and open recognition of error and hence the proper learning of lessons''.
 Furthermore, Railtrack, as it then was, argued that a potential benefit of a rail accident investigation branch in separating operation from safety regulation was 
''the greater ability to focus on root causes and to identify the lessons without blame requiring to be apportioned.''
 Paragraphs (a) and (b) do not clarify liability. Paragraph (a) says that the branch 
''shall not consider or determine blame or liability''.
 However, paragraph (b) says that the branch can still allow liability to be inferred from a report on the cause of an accident or incident. I shall be honest and admit that we do not have a ready answer to this dilemma, but I hope that the Minister will say how he will be able to balance the need for investigations that are unhampered by the risk of prosecution, as stated by Dr. Walter, with the understandable need for people to be satisfied that those responsible are dealt with so that public confidence is restored.

John Randall: If my hon. Friend the Member for Vale of York had some difficulty with the clause with her extensive legal background, 17 years spent selling furniture has not put me in the best position to understand it either. I may not have the greatest intellect, but I have trouble understanding the clause. I shall not discuss its finer detail, as my hon. Friend and the hon. Member for Carshalton and Wallington (Tom Brake) made some cogent points, but I would like the Under-Secretary to clarify a couple of matters.
 The first of those points relates to tramways. As the Under-Secretary is doubtless aware, there are plans for a tramway running from my constituency in west London to Shepherd's Bush. There are problems further up the line, although the Uxbridge section is quite happy about it. I want to know who would carry out an investigation in the event of a serious accident, and whether it would depend on the type of line or where exactly the accident had happened. 
 I find subsection (2) rather confusing, but subsection (5) is even more problematic. It states that the branch 
''shall not consider or determine blame or liability, but . . . may determine and report on a cause of an accident or incident whether or not blame or liability is likely to be inferred from the determination or report.''
 For my benefit and that of other members of the Committee, would the Minister put that in plain English? Does it mean that a report will contain not only the cause of the accident, but who, in the branch's opinion, was to blame, with consequent liability? As I look further into the provisions, I know that my abilities will be taxed further, but I am prepared to listen and learn from wise members of the Committee.

David Jamieson: What debate this clause has stimulated! I shall make a few general comments,
 which should deal with some of the particular points made.
 The clause outlines the aim of the rail accident investigation branch, which is to establish the root causes of railway accidents. As recommended by Lord Cullen, it is not the purpose of RAIB to apportion blame or liability. Those responsible for death or injury can be brought to account through prosecutions, which will remain the responsibility of the police and the Health and Safety Executive. 
 The RAIB will be under a duty to investigate all serious railway accidents. As my right hon. Friend the Minister for Transport made clear earlier today, the definition of serious accidents comes later and must be consistent with the EU directive, for reasons that we all understand. 
 The RAIB will also have discretion over whether to investigate tramway accidents. As the hon. Member for Vale of York pointed out, tramways run in a discrete area, sometimes in conjunction with roads. It may be appropriate for the police to investigate a problem on the tramways where it is seen largely as a road incident; on other occasions, it may be more appropriate for RAIB to investigate, especially where the event is associated with the running of the rail line rather than the road.

Anne McIntosh: Will that be the same in Scotland as in England? In Scotland, the procurator fiscal may form a view of the severity of the offence in certain circumstances, and I wonder whether that would apply under this clause—I am even more confused now, but that is more a reflection on myself than on the Minister. We need to be clear about which option applies. If the incident or accident takes place on a rail-running part, will the branch always investigate, and will the police always investigate events on road-running parts? Is that what the Minister is saying?

David Jamieson: No, it is not. It would be safe to say that where a tram runs on a discrete area set aside specifically for the tram with no road in the vicinity, the RAIB clearly would investigate. However, if an accident happened where a road and a light rail tramway ran close to each other, it would be up to the chief inspector to consider the circumstances and decide which was the most appropriate body to investigate. In some cases, it may be most appropriate for the police to investigate.

John Randall: The Minister raises the question of light rail. Does that count as a tramway or railway? Will the branch always investigate accidents on level crossings?

David Jamieson: Again, those would be decisions for the chief inspector to make after having considered the circumstances of a particular accident. We are in danger of trying to pin down precise examples, which is inappropriate. Where there is an interface between road and rail, it will be for the chief inspector to decide which body is the most appropriate to undertake an investigation.
 The hon. Member for Vale of York asked about trolley systems. I do not want to state the obvious, but 
 trolley systems have been excluded because they do not run on rails. This is a railway Bill.

Anne McIntosh: I am sorry, but that does not wash. The rest of the clause clearly relates to trams or trolleys—whatever one calls them—that run on the road. The Committee needs a definition about what runs on rail and what on road. Without such a definition, there will be an unnecessary and regrettable delay before the chief inspector can decide which agency should investigate.

David Jamieson: Trolley buses probably draw electricity from above and run on tyres, rather like buses. The trams, for which the Bill provides, are on rails and draw their electricity from above. I hope that shows the distinction between the two.
 The rail accident investigation branch will be able to carry out investigations and issue reports even if criminal proceedings are in progress or may be instigated in future. That will ensure that safety lessons can be shared with the industry as quickly as possible. If necessary, the chief inspector of the rail accident investigation branch will be able to apply to the courts for a declaration that publishing its reports will not amount to contempt of court for any civil or criminal proceedings.

Don Foster: Given the point about the pre-eminence of learning lessons, will the Minister comment on the rumours that are circulating ever more widely that the industry investigation into the Potters Bar accident is being increasingly frustrated by the police's failure to make available forensic evidence that the inquiry believes that it needs but that the police are not prepared to release? How does the pre-eminence of learning lessons apply in that case?

David Jamieson: I am not in a position to comment on rumour. We are looking forward rather than backward, and it would be inappropriate for me to comment. However, it would be appropriate to explore the interface between the police and the rail accident investigation branch. As the hon. Member for Vale of York said, after the investigation has been concluded, new evidence may come to light and necessitate reopening the investigation. Clause 6 will allow the chief inspector to do that.
 The hon. Member for Vale of York asked about limitations. The law on limitations applies to court proceedings and would not apply to the rail inspector. It is highly unlikely that new evidence will come into play after some years, but I do not see any reason why the Bill should inhibit the chief inspector from carrying out further investigation some years later if new evidence comes to light. The hon. Lady will know from her background that there are particular reasons in criminal and civil courts for the seven-year limitation. She also asked about the rail accident investigation branch and prosecution. The RAIB can investigate the causes and publish a report on the lessons to be learned, but any prosecution would be secondary to that. 
 The hon. Member for Carshalton and Wallington asked about the fear of prosecution in respect of 
 subsection (5)(a) and (b). The hon. Member for Uxbridge claimed to have been a furniture seller, so I shall try to put the provision into everyday language for him. Under paragraph (a), the branch 
''shall not consider or determine blame or liability'',
 so that makes it clear that such determination is not the prime purpose of the RAIB. Paragraph (b) goes on to provide that the RAIB should not be inhibited from publishing information in its report that might lead others to draw inferences. In other words, there are no limitations on what the branch can include in its report, though its prime purpose is not to determine blame or liability. It is for others to make appropriate inferences.

John Randall: I am beginning to see some light at the end of the tunnel, but could the report state the prime reason for the accident and attribute it to someone having done something wrong? Are we excluding the possibility of the report doing that in black and white, leaving it instead to inference, or can the branch say who, in its considered opinion, was to blame?

David Jamieson: May I provide an example to help? If a train driver working for a particular company drove through a red light and the RAIB put that information into its report, it would be difficult not to infer liability from it, but it is not the purpose of RAIB to attribute liability. It is for others to draw inferences, and, if appropriate, to occasion a prosecution. I hope that that explains the position clearly.

Tom Brake: I thank the Minister for his explanation, which I understand, but it does not deal with the problem that I mentioned—that the fear of prosecution, arising out of the inference, if not the apportionment, of blame in the report, risks hampering the free and open recognition of error and hence the learning of lessons.

David Jamieson: People should be able to speak to RAIB without any fear of prosecution. Unless the court applied for it, evidence would be used only in the RAIB report. If the report made statements that clearly followed from its investigations, it would be for others to decide whether liability for the cause of an incident had been occasioned. As I said, it is not the prime purpose of the RAIB investigation to attribute liability.
 If civil proceedings are likely or in progress, it may not be clear whether publishing the report would put the RAIB in contempt—it applies when an order of a court is not complied with—so it could apply to the court for guidance. Nothing is to stop the RAIB making its recommendations. I have covered most of the points raised and I hope that on that basis the Committee will support clause 6.

Anne McIntosh: We have teased out one or two issues on which perhaps the Government themselves were not clear. I reserve the right to return to these matters to seek further clarification and to give a greater steer. I do not want to pun that we have driven a coach and horses through clause 6, but the circumstances in which an accident involving a road-running vehicle or a rail-running vehicle would be investigated are still not entirely clear.

John Randall: There is a further point, although I should perhaps not raise it at this time. When we are talking about the police, I shall be interested to know whether the road traffic police or police constables will investigate.

Anne McIntosh: That is the second point. The first point is that it is as clear as mud what constitutes a road-running vehicle and what constitutes a rail-running vehicle. The Minister describes two different types of vehicle, both of which draw electricity from overhead. What differentiates them is that one is on a track and one is on a road. We still have not had satisfaction on that point. As my hon. Friend the Member for Uxbridge eloquently and succinctly put it, in which circumstances would the police investigate and in which circumstances would the branch investigate? Secondly, which arm of the police would conduct the investigation—the British Transport police or the British police force?
 I take issue with the Minister over another issue to which the Committee may wish to return. He draws a distinction, with which I have some sympathy, between the statutory limitations referring to a court case, particularly for criminal proceedings and those for civil proceedings. However I think civil actions also have a statutory limitation relating to clause 6(8). I refer to note 15 on the reopening of the investigation in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996. The Minister may assure us that the Government want to implement this regulation after the Bill's adoption. It states specifically: 
''(1) The Chief Inspector may cause the investigation of any accident or incident to be reopened and shall do so—
(a) if, after the completion of the investigation, evidence has been disclosed which is in his opinion both new and important; or
(b) if for any other reason there is in his opinion ground for suspecting that the reputation of any person has been unfairly and adversely affected.
(2) Any investigation reopened shall be subject to and conducted in accordance with the provisions of these Regulations''.
 I welcome the Minister's earlier explanation of why the aviation and maritime Acts left to regulations the implementation of provisions that appear in clause 6 for the rail accident investigation branch. But there is a serious omission in clause 6(8), in that the Bill does not go on to specify either the limited time within which the investigation may be reopened—so it would be time-barred—or the circumstances in which there would be a new investigation. I am sure that the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 are equally reflected in the maritime regulations.

David Jamieson: The hon. Lady asks about the circumstances in which an investigation would be reopened, but the Bill is quite clear on that. It says
''if . . . significant new evidence may be available.''

Anne McIntosh: I hear what the Under-Secretary says, and that is helpful as far as it goes. However, regulation 15 of the 1996 regulations specifically deals with the circumstances in which the chief inspector may reopen an investigation:
''if . . . evidence has been disclosed which is in his opinion both new and important; or . . . if for any other reason there is in his opinion 
ground for suspecting that the reputation of any person has been unfairly and adversely affected.''
 Clause 6 has been drawn very loosely—I use that word advisedly. We may seek to revisit it at a later stage, but we have used this opportunity to have a very good explanatory and probing debate. A number of questions remain to be answered. It is welcome that the clause goes further than equivalent provisions in maritime and aviation legislation, but it does not go far enough. 
 I have referred to the Secretary of State's comments. He said that the Bill 
''gives a fair amount of latitude to the chief inspector as to what he investigates.''—[Official Report, 28 January 2003; Vol. 398, c. 771.]
 I would go further. The Bill does not just give a fair amount of latitude. Clause 6 is too wide, too loosely drafted and deserves to be revisited. 
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Investigator's powers

Anne McIntosh: I beg to move amendment No. 18, in
clause 7, page 3, line 30, after 'dwelling-house', insert 
 ', within 500 yards of property'.

Alan Hurst: With this it will be convenient to discuss the following amendments:
 No. 17, in 
clause 7, page 3, line 45, at end insert 
 ', pursuant to the issuing of a warrant or pursuant to a decision by a magistrate's court and only where accompanied by a member of the British Transport Police.'.
 No. 10, in 
clause 7, page 4, line 35, leave out subsection (5) and (6).
 No. 4, in 
clause 7, page 4, line 43, at end insert— 
 '(7) A formal protocol of understanding and working practices will be made between the Rail Accident Investigation Branch and each of— 
 (a) the Health and Safety Executive and the H M Railway Inspectorate; 
 (b) the British Transport Police 
 under directions and guidance provided by the Secretary of State.'.

Anne McIntosh: I shall be fairly brief because clause 7 is worthy of a stand part debate for reasons similar to those that applied to clause 6. This is the meat of the Bill, the most controversial issue that we have reached so far and the most controversial in part 1.
 Amendment No. 18 would define more narrowly the ''dwelling-house'' referred to in clause 7. We would prefer a reference to a dwelling-house within 500 yd of the railway property. The Secretary of State said on Second Reading: 
''I agree that the granting of permission to enter people's property should be used sparingly.''
 He went on to say that the Committee would be afforded an opportunity to ensure that the Bill 
''is sufficiently tightly drawn to avoid unnecessary intrusion but still allows the investigation branch to carry out its work properly. In the past, investigators have sometimes found that their progress and ability to find things out quickly have been stymied because they could not get access . . . it is important that investigators should be able to get access as quickly as possible.''—[Official Report, 28 January 2003; Vol. 398, c. 771.]
 The Secretary of State rightly points out that it is for the Committee to put those provisions in place. 
 As I have said, the clause is drafted too loosely. Under subsection (1)(b) an investigator may 
''enter land (which may include a dwelling-house) which adjoins or abuts railway property''.
 I feel that the Government should be more specific. I am glad to see that the Minister for Transport will respond to the debate, and I look forward to hearing his comments. Amendment No. 18 is tabled in a co-operative spirit.

John Spellar: The hon. Lady talked about properties being within 500 yd, but her amendment would apply to land that was within 500 yd of railway property. We are talking about going across land, which may be necessary to move heavy lifting equipment and so on to get access to the railway. Her amendment would preclude that. This is not about the invasion of houses, but the crossing of property, which may include houses.

Anne McIntosh: The Minister has pointed out the finer details, which may need further probing and refinement. He will know that the Railways Act 1993 defines ''premises'' as
''any land, building or structure''.
 We will have a further opportunity to discuss that in the clause stand part debate. I am concerned that the right to enter a dwelling house—a private property as opposed to land—involves an invasion of privacy. The Secretary of State expressed concern on Second Reading.

Andrew Murrison: Does my hon. Friend agree that the term dwelling house is confusing? It may have a specific legal meaning. The word house is difficult because many people do not live in a house, but some other form of dwelling. Some of my constituents live in houseboats and boats. Would she like to press the Minister on whether we need to expand on the term ''dwelling house'' to make it more inclusive?

Anne McIntosh: My hon. Friend raises a pertinent point; I hope that we will be able to pursue it. The Minister will be aware of concern relating to the rather sweeping statement on the front page of the Bill:
''Mr. Secretary Darling has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the Railways and Transport Safety Bill are compatible with the Convention rights.''
 Obviously certain provisions of the convention relate to the right of an individual to guard property and to privacy. We can return to that at a later stage. 
 I do not argue that 500 yd is necessarily the appropriate distance, but the amendment is meant to probe. The force of the impact in the Potters Bar crash carried carriages some considerable distance down the 
 track. I think of small commuter stations that line the route of the railway in my constituency, quite apart from private land. A considerable number of dwelling houses would be affected should there, God forbid, be a disaster. I hoped that the Minister might see fit to provide the further clarification and definition requested by my hon. Friend the Member for Westbury (Dr. Murrison). Will he clarify the distance from the accident and the damage caused by the railway carriages to adjoining properties? 
 Amendment No. 17 singles out a glaring omission. As I said, there are others that it will be more appropriate to discuss in the stand part debate. The clause states: 
''For the purpose of conducting an investigation by virtue of section 6 an inspector of rail accidents may''
 and goes on to list those powers. We believe that it would be more in keeping to list powers given to inspectors and investigators under the two existing boards—the aviation accident investigation branch and the marine accident investigation branch. They are more specific about the powers given to the inspectors and how they inspect them. I hope that the Minister accepts that a warrant, or a summons written by his own hand—an expression used elsewhere—would be more appropriate. That power is again rather sweeping, but at least there would be a document to which one could object. 
 There is no defining document in the Bill, and no procedure that the inspector would have to follow. An alternative view, such as that of the occupant of a dwelling house or the owner of land, could be expressed in a decision reached by a magistrates court. We believe that it would be appropriate for the investigator to enter a property or cross land only when accompanied by a member of the British Transport police. These are provisos that would help the Government to keep within the provisions of the European convention on human rights. I hope that the Minister will agree that without amendment No. 17, the powers will be perceived to be sweeping in comparison with the powers of the other two bodies. I await the Minister's reply with baited breath.

Tom Brake: I await the Minister's response to the hon. Lady's probing inquiry. As I explained in the debate on clause 6, we will not press amendment No. 10 as it refers to clause 6, not clause 7. However, hon. Members will be relieved to hear that amendment No. 4 is perfectly in order, and will enable us to have a long and detailed debate for at least three or four minutes. Hon. Members will see that it is purposeful and important.
 We seek to establish that there should be a formal protocol of understanding and working practices between the rail accident investigation branch, the Health and Safety Executive, Her Majesty's rail inspectorate and the British Transport police. Other hon. Members referred to the large number of organisations in the industry and in government that have regard to safety aspects on the railway. As other hon. Members said, there are questions about who has responsibility for what and who takes the lead. We are aware of at least one inquiry—Potters Bar—in which it is clear that the different organisations involved do not 
 necessarily see eye to eye on how to proceed or the speed at which to proceed. 
 It is therefore important that a protocol of understanding is drawn up to cover working practices. That is not unusual or unique. There is already a memorandum of understanding between the Health and Safety Executive and the Office of the Rail Regulator, and one between the Health and Safety Executive and what was the Department of the Environment, Transport and the Regions when the agreement was signed in October 1996. 
 In the area of marine activities, there is a memorandum of understanding between the Health and Safety Executive, the Maritime and Coastguard Agency and the marine accident investigation branch on health and safety enforcement activities at the water margin and offshore. 
 In relation to aviation, there is a memorandum of understanding between the Health and Safety Executive, the Civil Aviation Authority and the aviation accident investigation branch. 
 A number of such memorandums of understanding already exist, and I hope that the Government will support drawing up a similar one in this context. The Minister may argue that it is not necessary to include that in primary legislation. However, it is important for the sake of the public that there is openness, accountability and a clear understanding of the different roles and responsibilities of the various organisations involved in rail safety. I hope, therefore, that the Minister will look favourably on the amendment.

John Spellar: I hope to show that the amendments could affect the ability of the rail branch inspectors to carry out their investigations. One of the main criticisms of the current accident investigation regime is that no single body is responsible for carrying out an investigation focused solely on finding out the root cause, without seeking to apportion blame or liability. The rail accident investigation branch will be that body. The inspectors must be able to get on with the job of finding out what went wrong.
 Amendment No. 18 would mean that investigators would be unable to access land more than 500 yd from an accident site. As the hon. Member for Vale of York mentioned, an accident could occur on a railway line running through fields. It is also possible for a vehicle to continue for 1 mile or more beyond the original accident site. In such cases, in order to access an accident site with specialist equipment, particularly lifting equipment, inspectors would need to cross land that was much more than 500 yd from the accident site. It is also possible that some part of the train could fly off some considerable distance before the crash, but be related to its cause. 
 The hon. Member for Vale of York mentioned human rights. Paragraphs 31 and 32 of the explanatory notes make it clear that the exercise of the power could interfere, as she rightly said, 
''with a person's right to respect for a private and family life or home''
 or with 
''a person's peaceful enjoyment of their possessions.''
 Both those areas are covered by the Human Rights Act 1998. However, paragraph 32 explains that 
''even if these rights were interfered with, the Government considers such interference justified on the grounds that this statutory power is necessary to ensure public safety on the railways; and it is in the general public interest that such investigations take place.''
 The hon. Lady will be aware that that qualification is also contained in the 1998 Act. 
 Amendment No. 17 would similarly risk impeding the rail accident investigation branch in carrying out its investigations. Evidence and time may be lost if the inspectors have to rely on the police being present at all times when they are gathering evidence or if they have to wait for the inspector to obtain a warrant or some other court decision. Such a requirement would also be out of step with the other accident investigation branches that Lord Cullen used as examples for the need to create a rail accident investigation branch. The aviation and marine branches are highly respected independent accident investigators that search for the causes of accidents unfettered and without the requirement for a warrant. The RAIB will be a similarly professional body of accident investigators, and I did not hear a case why it should be treated differently from the other branches. 
 The hon. Member for Carshalton and Wallington spoke about amendments Nos. 10 and 4, which deal with the relationship between the RAIB and the HSE and police. The police and HSE will still have responsibility for pursuing prosecutions so that those responsible for causing death, injury and serious risk are properly held to account. However, it is essential that one person is clearly in charge at the scene of an accident, and that person will be the chief inspector of rail accidents—the head of the railway branch. The railway branch will not order non-RAIB investigators to do anything at the scene or elsewhere, but when a decision needs to be taken about what may or may not be done at the scene, it will rest with the chief inspector of railway accidents. I stress again that that will not override the existing statutory duties or functions of any other person or body. 
 As has been commonly agreed in the Committee, a protocol will be needed to establish clearly the lines of control at accident sites. Knowing the pressures and difficulties at such sites, the protocol should decided well in advance so that those involved know their rights and responsibilities. Indeed, we have been consulting the Health and Safety Executive and the police about that since Lord Cullen published his report in September 2001.

Tom Brake: I thank the Minister for agreeing that there should be a protocol. Does he have any idea about the protocol's timing in the context of the Bill and its establishment of another safety body?

John Spellar: My next sentence was to say that the HSE and the police have agreed that protocols are needed and have to be worked on. However, it will be for the chief inspector of rail accidents to develop such protocols independent of Government direction. The
 accident investigation branch will be independent, and we expect the chief inspector, once appointed, to have experience and knowledge that can be drawn on. There have already been discussions with the police and HSE.

Don Foster: Will the Minister say anything about the thinking behind the nature of those protocols? That might best be done by giving an example. The Minister has said that the protocols will be drawn up primarily by the new head of the accident investigation branch. In a situation in which the police were investigating what they believed to be criminal activity at the same site at which the RAIB was investigating the cause of an accident so that lessons could be learned, what would happen if the police obtained forensic evidence but failed to make it available to the RAIB on the grounds that so doing might contaminate it and make it more difficult for the police to pursue their criminal investigation? What would be the supremacy of interests in such a case?

John Spellar: My next point concerned the basis on which the protocols will be drawn up. The chief inspector and the other bodies will be able to draw on the experience of the aviation and marine accident investigation boards, both of which already operate protocols. The aviation accident investigation board works with the Civil Aviation Authority and the police, while the marine accident investigation branch works with the Maritime and Coastguard Agency, the Health and Safety Executive and the police. That is not required by statute, but protocols are in place and they work. There is no reason why the RAIB should be different. Protocols will also be needed with the British Transport police and the county police forces, as the first force on the scene varies depending on the incident. An exercise carried out in the past year attempts to clarify the position between local police forces and the British Transport police in handling incidents; we want to improve procedures to speed up decision making and to get the system up and running again.
 It is difficult to prescribe the decision that will be taken in an individual case. Protocols and procedures, including a hierarchy of decision making, are needed for handling relationships between the various bodies so that they can proceed in parallel with the necessary mutual understanding and co-operation, as the hon. Member for Bath said. That must be handled precisely by establishing those procedures, but they can draw on the protocols already in place for the other branches.

Don Foster: I am grateful for that clear explanation of the procedures that will be followed. I accept that it is a difficult subject; notwithstanding the existing protocols, there is a great deal of confusion and an urgent need to resolve some of the problems, not least in respect of primacy of access to available evidence.
 The Minister specifically said that the protocols would be drawn up by the head of the rail accident investigation branch, independent of Government. The problem is that there will be conflicts between the RAIB and the other bodies with whom the protocols have been drawn up. The Minister seems to be saying that the Government will not play any part in resolving conflicts that may occur, especially in 
 respect of the availability of evidence between the RAIB, for example, and British Transport police, for which he rightly said that a protocol is needed.

John Spellar: I actually said that that would be done independent of Government direction, which is enormously important in maintaining the independent operation of the rail accident investigation branch.
 We can draw some comfort from the experience of the two other accident investigation branches, which are working well and have managed to develop the necessary procedures with the various bodies. The hon. Gentleman is not entirely right to say that the current procedures are well developed on the railways as greater clarity is needed to ensure that actions are taken in the right order and given the right precedence. 
 Following the procedures of the other branches will be in the interests of railway safety and cater for the necessary interests of the other bodies. I draw comfort from what they have achieved.

Anne McIntosh: There is some confusion. Will the Minister please explain the difference in legal status between the memorandum of understanding that exists between the HSE and the rail regulator, which will presumably have to be replaced, and a protocol?

John Spellar: We are talking about potential agreements in respect of broad areas of competence in one case. A protocol is guidance for those involved in operations who may have to take decisions in immediate circumstances, especially in a crisis when life and health may be at risk, and a clear basis is needed for the procedures through which decisions are taken. A memorandum of understanding can cover a broader area of agreement—on spheres of competence, for example—between different organisations. I hope that I have provided a reasonable differentiation; if I am advised of any subsequent variations on that position, I will notify the hon. Lady.

Anne McIntosh: That obviously raises a supplementary question. To what extent will members of either House have the opportunity to scrutinise the drafting or implementation of the memorandum of understanding or the protocol?

John Spellar: Transparency is fine in terms of visibility, but ''scrutinise'' implies the ability to alter legislation. The powers of these bodies are drawn either from current or prospective legislation, and we have to decide on the right procedures to achieve the most effective operation of those powers. I am not sure that it is appropriate for Members of Parliament to second-guess that. Legislation is always open to change through parliamentary channels, but that is not the same as overseeing and altering agreements reached between proper statutory bodies in exercising their powers. Sensible arrangements are necessary to enable them to achieve the optimum outcome.

Anne McIntosh: The Minister will be aware that parliamentarians like to visualise arrangements; perhaps that is too strong a word, but if we are fully to understand the Bill, we should be made aware of the contents of the memorandum of understanding and
 the respective protocols. The hon. Member for Bath provided a graphic description, which I hope will not come to fruition. He made a serious allegation.

Don Foster: I can tell the hon. Lady that I have strong evidence—though not of the sort that I can put in front of people—that the current investigation into the Potters Bar accident is having difficulty in obtaining forensic evidence from the police that would help to determine the cause of the accident. I understand—the Minister may confirm it—that an interim report has been produced; perhaps it has already been presented to the Government. It is important for parliamentarians to have an input, as the hon. Lady says, to help sort out such difficulties.

Anne McIntosh: I was once a witness of a fairly serious motoring accident. I was not personally involved, but was three cars away from a young man who was seriously disfigured and nearly killed. I am not sure whether road accident reports are the same as rail reports. I asked that on Second Reading, but did not secure an answer, so I shall ask again. Police reports for road accidents are used when road traffic cases come before the court. In this particular case, the injured man's insurance company asked me to make a separate statement. It is notorious that witnesses' memory of an accident becomes much hazier with the passage of time and it becomes increasingly difficult to remember specific details. The insurance company approached me because it did not want to pay the police for statements provided under certain procedures.
 I hope that the same will not apply here and that people will not have to pay the police for reports that are being prepared, because they may become relevant to insurance cases at a subsequent stage.

John Spellar: I am more than happy to comment on how time erodes memory. We find that with Conservative Members as we get further from the period of their Government: they have very convenient memory lapses regarding the actions of that government, and indeed of the parts that they played in it.
 Let me get back to the core issue in order to satisfy both the hon. Members for Bath and for Vale of York. They rightly identified a difficulty in current procedures, and that is addressed by clauses 5 and 6, which give primacy to the rail accident investigation branch during an investigation, and clarify beyond doubt who has primacy during an investigation. Different parties will be involved in the investigation of an accident and will work alongside each other. That procedure works successfully in the maritime and aviation areas. This means that one body will provide the lead—the rail accident investigation branch. 
 When a police office or another investigator seeks to take a particular course of action, the chief inspector of rail accidents, or a person acting on his behalf, will be able to decide what course of action should be taken. To save the hon. Member for Bath from taking notes on that point, it is covered at 
 paragraph 27 of the explanatory notes. I hope that clarifies his difficulty regarding the procedure by which those issues will be resolved.

Don Foster: Will the Minister give way.

Alan Hurst: Order. The Minister was intervening on Miss McIntosh.

Anne McIntosh: I was trying to get back in—

Don Foster: Will the hon. Lady give way? [Laughter.]

Anne McIntosh: Of course.

Don Foster: Is the hon. Lady aware that the Minister's response has not clarified the position? It explains who has primacy over the way in which the investigation will be carried out, but it does not resolve the problem of who, for example, would have prime responsibility for holding evidence gained during an investigation.

Anne McIntosh: I am trying confine my comments to the amendment, as I would like to debate the broader issues in the clause stand part debate. I acknowledge what the hon. Gentleman says, and I note that he is trying to be extremely helpful. However, amendment No. 18 was intended as a probing amendment, and he and I have both highlighted the difficulties. We recognise that further clarification is required especially in line 30, though we will not press the amendment to a vote.
 I am not sure that I got much satisfaction from the Minister on amendment No. 17. Perhaps we can go on to discuss that at greater length in the clause stand part debate, since, in my view, the powers in clause 7 are much broader than those of the two other existing accident investigation boards. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Anne McIntosh: I am most grateful for this opportunity to have a separate discussion on clause 7, in order to look in some detail at the investigators' powers.
 My hon. Friends and I believe that clause 7 is much more sweeping than those that pertain under the civil aviation investigations branch rules. I agreed with the Minister when he extolled the virtues of the two existing boards. They were set up by a Conservative Administration, and the Committee would not expect me to say anything other than that they are remarkably good organisations. 
 The right hon. Gentleman noted that the two boards are widely regarded as functioning extremely well, and as with our own Health and Safety Executive, I hope that they can go on to be models in the manner to which I referred this morning. We should export some of our better ideas to the European Union rather than waiting to hear what it has to propose to us. 
 The Minister referred to paragraph 32 of the explanatory notes and the little local difficulty that the rail accident inspectors will encounter in complying with article 8 of the European convention 
 on human rights. I once appeared as counsel in the European Court of Human Rights, as opposed to the European Court of Justice. I found it immensely satisfying; it was in Strasbourg in a rather nice building designed by a British architect, but that is irrelevant. I have some moderate experience in this area. Were I to be counselling someone who did not wish, for whatever reason, for one of the inspectors to enter his or her land or dwelling place, article 8 would provide a strong defence to resist any moves by the inspector or investigator to enter. 
 Article 8 is expressed in strong terms: 
''1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.''
 The article is wide-ranging. The Minister will probably say that it could be read in one of two ways. One could say it was for the health and public safety of the nation that the inspectors or investigators should have the powers to enter the land, dwelling or premises, but the Government have created themselves a problem by incorporating the European convention on human rights into an Act of Parliament. 
 Bearing in mind the consensus that we should give fair speed to the creation of the rail accident investigation board, I regret that I perceive difficulties down the road for inspectors and investigators who seek to enter certain premises, dwellings and private land because article 8 has been written into an Act of Parliament. That will come back to haunt the Government. 
 Clause 7 gives the rail accident investigation branch inspectors the powers deemed necessary to conduct an investigation. The provisions are modelled on the powers of the aviation accident investigation board and the marine accident investigation board. Subsection (3) creates new offences designed to prevent a rail accident investigation inspector from being hindered in his investigation. It has become an offence for any person to fail to comply without a reasonable excuse 
''with a requirement imposed by an inspector of rail accidents''
 or to provide an inspector with evidence they suspect or know is misleading. 
 A person will also be deemed to be committing an offence if he 
''obstructs a person accompanying an inspector''.
 We hope that a police constable from the British Transport police would accompany the inspector on every visit. We have yet to hear from the Minister whether the Government will acquiesce in that request and whether the accompanying person will be authorised by the chief inspector of rail accidents. Someone who wished to oppose the powers that an inspector wanted to exercise under the clause could say that they wanted to rely on article 8. I believe that the Government will regret having enshrined it in a UK Act. 
 The Minister referred to subsections (5) and (6), which give the rail accident investigation board primacy in investigation. I understand that in certain cases the concurrent jurisdiction will cause some confusion. That is regrettable. Primacy needs to be clarified, but the provisions are welcome in so far as they ensure that different parties involved in investigating an accident will work alongside each other. The RAIB will be in the lead. The provision should clarify the position where a person such as a police officer or any other investigator seeks to take a particular course of action during an investigation. The clause states that the chief inspector of rail accidents or a person acting on his behalf—presumably that means an investigator or an inspector—can make decisions about whether that course of action may be taken. 
 I have difficulties with subsections (1), (5) and (6) because they are so different from the equivalent provisions in the implementing regulations relating to the aviation accident investigation board. Regulation 9 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 states: 
''For the purpose of enabling him to carry out an investigation into an accident or incident in the most efficient way and within the shortest time, an investigating Inspector is hereby authorised, where appropriate in cooperation with the authorities responsible for the judicial inquiry''.
 It continues: 
''For the purpose of paragraph (1) above an investigating Inspector shall have power—(a) by summons under his hand to call before him and examine all such persons as he thinks fit''.
 The very fact that he has to issue a summons means that there is a document that can be contested. It shows the reasons why the inspector requires the person to provide information or to submit articles such as books, papers, documents and so on. The section specifies further powers: 
''(b) to take statements from all such persons as he thinks fit and to require any such person to make and sign a declaration of the truth of the statement made by him;
(c) on production if required of his credentials, to enter and inspect any place, building or aircraft the entry or inspection whereof appears to the investigating Inspector to be requisite for the purposes of the investigation;
(d) on production if required of his credentials, to remove, test, take measures for the preservation of or otherwise''.
 It is important that the inspector is required to produce his credentials. Why did the Government not see fit to write into the Bill, having gone into so much detail in the clause, the reasons why the investigator should either be accompanied by a British Transport police officer, have a decision of a magistrates court or a summons, or be asked to produce his credentials if required?

John Spellar: I refer the hon. Lady to lines 27 and 28 on page 3 of the Bill, which relate to the investigator's powers. The provision says what an inspector of rail accidents may do for the purpose of conducting an investigation
''provided that he produces evidence of his identity if asked to do so''.
 I think that that meets the hon. Lady's criteria.

Anne McIntosh: We are talking about a fine nuance. The Minister might argue that we are splitting hairs.

John Spellar: The inspector is not asked to provide his bus pass.

Anne McIntosh: No, and he is not a gas inspector.
 The investigator's powers under clause 7 are extremely extensive. Opposition Members believe that there is a balance to be reached in respect of transparency and the exercise of those powers. The investigator should enter the premises with the requisite authority and act under the auspices of the chief inspector of rail accidents. We want to ensure that the powers are deemed to be reasonable. They should enable the investigator to pursue the investigation, but at the same time the rights of individuals should be observed. 
 The Government felt strongly enough about the European convention on human rights to write it into a separate United Kingdom Act of Parliament. I am trying to help the Minister, although he may not see it that way. The Minister will have to satisfy the concerns of any individual who is entitled to rely on article 8 in his defence to prevent someone from doing what we are discussing. 
 Clause 7(1) says the inspector may act 
''provided that he produces evidence of his identity if asked to do so''.
 I would assume that people would want to know who I was before I went on to their property. The slight difference in emphasis is interesting, and I simply wanted to explore whether there was a reason for it. It is welcome that the Government have gone into so much detail in the Bill, rather than leaving matters to regulations that the Committee would not have the power to debate.

Richard Bacon: I am listening to my hon. Friend with great interest. I served on the Committee that considered what became the Animal Health Act 2002, so I am used to the Government playing fast and loose with entry powers. She may be interested to know that the Minister in that Committee returned the following day with the word ''proportionality'' on his lips rather more frequently than it was initially when he answered Opposition points. Does my hon. Friend agree that, although the Government have kindly acknowledged the need to produce evidence of identity, that does not of itself amount to anything approaching balance or a check and balance?

Anne McIntosh: I am grateful to my hon. Friend. I use the expression ''reasonable powers'', but the principle of proportionality is even more appropriate in this respect. I hope that the Minister listened to that helpful intervention and will have regard to it.
 Equally, we have not yet discussed clause 7(3), which uses a similar expression. I know from my time as a law student how much time is spent talking about what constitutes ''a reasonable man''. Subsection (3) states: 
''A person commits an offence if without reasonable excuse''.
 The Government therefore wish to be mindful of this issue. The powers should be exercised proportionately and in a reasonable way. As I said, I welcome the fact that the powers have been written into the Bill, which might not have been the case. 
 The Minister may say that the Government will elaborate on clause 7 through regulations, so that, for example, a summons under his hand or a warrant will be sought. The clause alludes to the fact that the investigator may be accompanied by another person. That other person should, in each case, be a constable or an officer of the British Transport police. That would go some way to allaying the serious concerns raised by the hon. Member for Bath. If the police were involved at every stage in the taking of evidence there would be less opportunity for discussion and debate later about who had access to the evidence if they needed to bring a criminal prosecution. In the event of someone wanting to rely on article 8 of the European convention on human rights as amended by protocol 11, would not that lead to an unnecessary and regrettable delay? Would it be better if the European convention on human rights were not enshrined in a UK Act? 
 Clause 7 is extremely wide; it could lead to controversial situations and contains no precise definitions. I hope that the Minister will respond in a spirit of helpfulness.

John Randall: My hon. Friend and the hon. Member for Bath made some important points. I speak from a layman's point of view; we are keen for the investigator to get to the root of these matters, but it seems that he will have more power than the police. Is that correct?
 If the police thought that a piece of evidence was vital because a criminal offence had been committed, would the investigator or the police have the right to that evidence or would they have to take it in turns? I may have been watching too many episodes of ''The Bill'', but presumably the evidence must be taken in a certain way to be accepted in a court of law. For a member of the jury, that will hinge on whether the police went through the correct procedures in obtaining the evidence. I am worried that vital evidence obtained by the investigator will be used by the police in a court of law and the defence will say that it was not obtained properly. We hear of cases where the policeman did not have his helmet or hat on, and therefore was not properly dressed to make an arrest. With due respect to my hon. Friend the Member for Vale of York who is a non-practising lawyer, sometimes lawyers find little loopholes that are not necessarily in keeping with the spirit of the law. 
 I wonder whether the inspector should be accompanied, as my hon. Friend said, for his security. Anyone presented with a railway inspector's identification would not necessarily be aware of the great powers that he had—and they might not be so eager to come forward and help if they were aware of them. In a notable case, some poor chap from an enforcement agency got shot because the landowner did not believe the chap had the right to do what he was doing, and a serious criminal offence was committed—

John Spellar: We should try to discourage that.

John Randall: Yes. I am worried about the inspector's safety and wonder whether it would be a good idea for a constable to be present.

John Spellar: Let me deal with several points that hon. Members raised.
 The hon. Member for Vale of York will not be surprised to hear that we do not believe that the clause poses any problems in relation to the European convention on human rights, because any interference with a person's right to a private life can be justified and defended on the grounds that the measures are designed to improve public safety, which the convention covers. 
 We also believe that RAIB inspectors will be professional investigators and that they will enter private property only if they believe that there is evidence relevant to the investigation of that property. I stress again that they must show their identity if asked. 
 On the gathering of evidence, not only would the evidence be gathered to the highest possible standards, but it would be able to be shared with the police. However, the witness statements that the RAIB had taken would not be shared with the police.

Don Foster: The Minister said, ''would be able to be shared'', but I presume that he would stress that matters should go further and that evidence would be required to be shared between all the appropriate bodies if requested by those bodies.

John Spellar: That is certainly so. The matter would need to be resolved between the bodies.

Anne McIntosh: That returns to the point that I made about written statements not being released to the police in road accidents. As my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) said on Second Reading, we believe that there should be parity between the ways in which road and rail accidents are dealt with. As the Minister will recall, it is a source of distinct disappointment to us that road transport has not been included in the Bill. He, like other members of the Committee, will have received representations detailing the compelling reasons for including aspects other than the very limited ones in the Bill.
 I would hope that evidence statements made available to the rail accident investigation branch under these powers would, in almost all circumstances, be made available to the police and to other Government agencies or public authorities. We are all working towards the same end. What grounds could there for not releasing a written statement in these circumstances?

John Spellar: The hon. Lady goes partly to the core of the branch's purpose. That is precisely why Lord Cullen drew on the examples of the marine and aviation branches as his model for the rail accident investigation branch. The purpose of those branches is to produce reports not to prosecute, but to identify the reasons for and the causes of accidents, to determine the lessons to be learned for the rest of industry, and to disseminate that information throughout the industry
 to improve its safety record. They therefore require the earliest possible co-operation of witnesses in the widest possible sense that may be easier to obtain under the conditions where those witness statements will not be released to the bodies responsible for prosecution. Those bodies may be able to interview the same people, but there is an important distinction to be drawn between their role and that of the branches. That distinction goes to the heart of this part of the Bill, and is precisely why Lord Cullen drew on this scheme as the basis for his report, and why we implemented it.

Anne McIntosh: We are now getting somewhere. As a Scottish advocate, I was brought up on an adversarial system, and believe that the Minister has grasped the heart of the matter. We all support the concept of an independent, but hopefully transparent, means of deciding why we want a rail accident investigation branch. I presume that it is for the reason that the Minister gave; namely, that a statement would not be released because the dissemination of the information in the root causes report, drafted by the rail accident investigation branch would be made available to all the industry. However, is the Minister saying that the police would use it purely for the purposes of prosecution, which would make it more adversarial?

John Spellar: I am not sure that that is exactly how I would put it. Regarding aviation, people might be less open and less willing to reveal potential difficulties if they believed that it could lead to legal action further down the line. The purpose of an accident and investigation board, in the light of the other two boards' experiences, is to identify the cause of the accident in the shortest possible time and to draw appropriate lessons from it. That was the basis of Lord Cullen's inquiry and recommendations, which we have followed through, and the procedures should enhance safety in the industry. We are resistant to making witness statements available, though material evidence would be valuable—an issue that goes to the heart of the clause.
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Regulations

Don Foster: I beg to move amendment No.2, in
clause 8, page 5, line 12, at end insert— 
 '(g) make provision for the occasions on which the Secretary of State may decide any incident to be investigated through a public inquiry.'.
 The amendment may not detain the Committee long. We have already discussed the different bodies—the new RAIB, the British Transport police, insurance loss adjusters and the new rail standards and structures organisation—that may investigate a rail accident or incident. We have rightly debated the protocols between them and the primacy issue of who will take charge and have the highest authority in the investigations. 
 Clause 9 introduces another set of bodies potentially interested in an investigation, because the chief inspector of rail accidents may direct others involved in managing or controlling parts of the railway to carry out an industry investigation. When we reach that clause, I shall argue that it is right and proper for train operating companies—

Alan Hurst: Order. The hon. Gentleman would be wise to wait for us to reach that clause before debating it.

Don Foster: I am grateful, Mr. Hurst, for that slight slap on the wrist, but I am arguing that another investigation is going to be set up and we need to examine how different investigations interrelate. Briefly, industry bodies may themselves be conducting an investigation but another form of investigation—a public inquiry—may also take place. I tabled this probing amendment to elicit from the Minister how, in the light of the new rail accident investigation branch, he views the establishment of public inquiries in future.
 The amendment is simple and I intentionally selected an incident rather than an accident to highlight the potential need for a public inquiry even for an incident—a point raised by the Royal National Institute of the Blind in its excellent briefing. Does the Minister envisage the chief inspector recommending a public inquiry to the Secretary of State? Will the current arrangements need to be changed to establish a public inquiry into the railways? At the moment, any such public inquiry would be set up as a result of section 14 of the Health and Safety at Work, etc. Act 1974. It would be conducted under section 14(2)(b) according to procedures laid down by regulations that were published in 1975. The problem with those is that they give the power to the Health and Safety Commission, with the consent of the Secretary of State, to arrange for there to be such a public inquiry. 
 The amendment is worded to ensure that there is nothing that would prevent the Secretary of State from arranging a public inquiry into an accident or an incident—an incident is referred to in the amendment—following the setting up of the rail accident investigation branch.

Anne McIntosh: I hesitate to comment on that. It is an interesting concept. I imagine that the Minister will respond by saying that the whole purpose of the Cullen recommendations was to set up an independent investigation and that that could be hampered by a public inquiry. Would he see a public inquiry as serving any purpose or could it be counter-productive?

John Spellar: I hope to demonstrate that the amendment is unnecessary. The hon. Member for Bath indicated that it was a probing amendment.
 As we have said throughout the discussion, the rail accident investigation branch will carry out open and transparent investigations into accidents and will publish its reports into those accidents as quickly as possible. We want it to be able to get on with its investigations. 
 If the Secretary of State decided that a public inquiry into a particular accident was warranted, which might be on the advice of the chief inspector, he could, as the hon. Member for Bath mentioned, set one up. The Secretary of State does not have to rely on the other powers that the hon. Gentleman mentioned. He can call a public inquiry into any matter, under prerogative powers, or he can appoint a tribunal to inquire into a matter of urgent public importance and endow it with powers under the Tribunals of Enquiry (Evidence) Act 1921. 
 That gives an indication of circumstances in which an inquiry could be held, but we hope that, in general, public inquiries will be unnecessary, because much of their role will be undertaken more expeditiously by the rail accident investigation branch. That is why its establishment was recommended by Cullen and why we have included it in the Bill.

Don Foster: I am grateful to the Minister. He made it clear, as I hoped that he would, that nothing would, as a result of the establishment of the rail accident investigation branch, fetter the Secretary of State's power to call a public inquiry, perhaps on the advice of the chief inspector. That, above all, is what I hoped to hear from the Minister, and I am glad that it will be on the record.
 I have a number of further questions about the future role of the Health and Safety Commission in relation to rail accidents, if we have a clause stand part debate. The Minister will be aware that the Health and Safety Commission would still have the power under the Health and Safety at Work, etc. Act 1974 to set up a public inquiry. However, we need not dwell on that matter, as it is not within the spirit of the amendments. I have received the clear answer that I wanted, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Further consideration adjourned.—[Joan Ryan.] 
 Adjourned accordingly at six minutes to Five o'clock till Thursday 6 February at five minutes to Nine o'clock.